Restraint orders etc

190.Section 119 sets out when a restraint order, as provided for in the ensuing sections, may be made by the Court of Session or sheriff court (civil). A restraint order has the effect of freezing property which may be liable to confiscation following the trial and the making of a confiscation order. Under the earlier confiscation legislation, the earliest time when a restraint may be made by the court was within 28 days before proceedings were instituted, or an application in respect of further confiscation proceedings had been made or was to be made (for example, for a reconsideration of the accused’s benefit).

191.The Act maintains the present position on restraint orders with one change. The point at which a restraint order may be made is brought forward to any time after a criminal investigation has been instituted, as defined in section 154(1). The change is likely to be of particular assistance in cases where the investigative process involves questioning the suspect (as often occurs, for example, in fraud cases) and the suspect is, accordingly, alerted to the risk that the authorities may be thinking of applying for a restraint order.

192.Section 120 explains the nature and effect of a restraint order. It is an order interdicting a specific person from dealing with any realisable property held by him. Thus it may be made both against the accused or person under investigation, and any other person holding realisable property. Subsection (3) provides for exceptions to be made for reasonable legal expenses but subsection (4) prevents funds under restraint from being released for legal expenses to defend the criminal charges in respect of which the restraint order is made or for legal expenses relating to those charges which are incurred by a recipient of a tainted gift. Legal aid will continue to be available in those circumstances.

193.An application for a restraint order may only be made by the prosecutor. Once obtained, the prosecutor must notify every person affected by it. The court has powers to recall or vary a restraint order.

194.Section 125 provides the prosecutor with a right of appeal against a court’s decision not to make a restraint order, and the prosecutor or any person affected by the order a right of appeal against the court’s decision to vary or recall an order (or not to vary or recall it).

Sections 123 & 124: Inhibition of property affected by order; arrestment of property affected by order

195.These provisions replicate those in existing legislation and are designed to prevent the dissipation of the accused’s heritable or moveable property.

196.Section 125 follows the earler confiscation legislation in enabling an administrator to be appointed by the court where a restraint order has been made. The role of an administrator is to manage property to maintain its value until a confiscation order is made.

197.The current legislation enables “an administrator” to be appointed on the application of the prosecutor. In fact, administrators perform two different functions. They manage property pending the accused’s conviction (and sometimes afterwards) and they dispose of property to satisfy the confiscation order. The earlier legislation did not distinguish between them as such. The Act now deals separately with the two different sorts of administrators and calls them management administrators and enforcement administrators.

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